Equal but Separate: Schuette

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law, Visiting Professor Spring 2014, Albany Law School

As we know, Schuette’s 6-2 boys against the girls decision came down today.

A succinct description of it in the wake of Fisher is we have now moved to equal but separate. As long as the methodology can mask sufficiently artfully animus, the Supreme Court is basically saying it is not its business to upset that equality cart.

Alternatives to race-based admissions, as Ginsburg noted in her dissent in Fisher, enshrine spatial segregation of minorities that is inherent in the American fabric. Market based housing value diminution when blacks make up more than 10 percent of the neighborhood (or, put another way, the higher valuing for housing in low black presence neighborhoods) as recently discussed in Forbes shows that the invisible hand of private ordering enshrines a social structure in a way that is of no moment to our Supreme Court as long as it is left unsaid when it is done.

That 90 percent of black Michiganders who exercised the franchise voted against the Proposition is not mentioned at any point as to their evaluation of the implications of the Proposition for them. Platitudes about “more harm than good” of the Chief Justice cannot find words to react to that level of polarization of the electorate on the topic.

Through the federalism structure of our Constitution that enshrined a slavery based status quo over 200 years ago to the present 12 or 13 generations later reinvention of subordination described in all it’s artfulness by Justice Sotomayor, a past that is always with us and even isn’t the past presents Faulknerian challenge to the good “faith” intentions of Kennedy, Roberts and Alito.

Many have engaged in those efforts to seek dialogue and interest convergence in the manner naively opined about by Kennedy, Roberts and Alito. But, in return, I have been asked to leave or threatened with the police being called on me. In 2012. When one’s presence and assertion of one’s agency are seen as an existential challenge, one realizes rapidly that dialogue is not being sought but rather acquiescence to one’s subordination.

That history falls on deaf domestic ears – as one notes the self-satisfaction in many quarters with this accelerating Supreme Court project to enshrine social hierarchy at the expense of the most vulnerable of its citizens in this federalism – particularly those who happen to be black.

At the end of their lives, Justices will express Posner-like regret for the result of their artful dodging of the history. However, as it has for 12 or 13 generations, their mea culpas will continue to leave many of us cold.